Just days after a state senator called for the resignation of New Mexico Human Services Department Secretary Brent Earnest, the two kept things relatively cordial with one another in their first public meeting since then.

Sen. Jerry Ortiz y Pino, D-Albuquerque, chair of the interim Legislative Health and Human Services, gave the floor to Earnest during the Monday morning committee hearing by the committee to explain how he is addressing allegations in several court testimonies of a department policy to falsify and delay emergency food benefit applications.

“I don’t believe that anything has been said about what you’re doing about that,” Ortiz y Pino told Earnest.

“If Secretary Earnest did not know this was happening, he failed to lead the agency,” his statement said. “If he did know, but did nothing, then this is may be a very serious legal matter.”

During the hearing Monday, Earnest explained that since the allegations first surfaced in April, his department launched an internal investigation and issued a written directive to employees telling them to follow federal guidelines.

Specifically, nine former and current employees alleged in federal court that the department added fake assets to applicants who qualify for emergency aid from the federal Supplemental Nutrition Assistance Program (SNAP), commonly known as food stamps.

Employees and managers would add fake assets to overdue emergency applications that hadn’t been processed within the required seven days, according to testimonies. This practice allegedly helped clear the department’s backlog of overdue emergency SNAP applications, but applicants who qualified were then denied emergency aid.

In a statement provided to KUNM public radio last Friday, an HSD spokesman referred to the department’s internal investigation as “independent.” Ortiz y Pino questioned Earnest on how independent the internal investigation could actually be.

“What we have available is our inspector general who does operate independent of our division,” Earnest said, referring to the Income Support Division, which manages SNAP and Medicaid applications. “So he reports to me as the secretary.”

Ortiz y Pino responded that he had heard concern that employees “may be reluctant to be fully forthcoming with an internal investigation.”

So far, the State Auditor’s Office is the only outside entity that announced an investigation into the SNAP fraud allegations.

The topic of retaliation against employees who first made the allegations also came up. In court, one woman said her superiors deleted emails showing evidence of her allegations after first testifying while another said she’d was being monitored more since first coming forward.

Human Services Department Secretary Brent Earnest

“I know they’ve all expressed concerns,” Earnest said. “But we take that also very seriously and we also have discussed with supervisors that we have an anti-retaliation policy, and we remind them of that.”

Ortiz y Pino also asked Earnest about the “browbeating” and aggressive questioning in court earlier this month from attorney Paul Kennedy, who is representing HSD.

During that hearing, Kennedy questioned the morals of Alexandra Hancock, a Silver City-based application processor for the department who testified that her superiors reprimanded her for processing a late application the correct way instead of adding fake assets to delay the benefits.

After Hancock described herself to the court as a “social justice” advocate for one of her reasons for coming forward, Kennedy questioned her on why an advocate would come forward with the allegations now and not two years earlier when Hancock said she first learned of the alleged fake asset practice.

Center on Law and Poverty attorney Sovereign Hager objected to the question as “harassing the witness,” which federal Magistrate Judge Carmen Garza sustained.

Kennedy, a former State Supreme Court justice, is a frequent lawyer for Gov. Susana Martinez’s administration and also represented Jay McCleskey, Martinez’s top political operative, when he was recently under federal investigation.

“I just wonder if it’s wise to go along with an approach that basically says, ‘If we’re being accused of something we’re going to defend ourselves, even if it later turns out to be true,’” Ortiz y Pino told Earnest. “‘And we’re going to do it in a way that puts the workers that brought this to light in a defensive posture.’”

Earnest responded by saying that “having sat in the witness stand, browbeating is apparently the tactic that attorneys like to use in that setting.”

“And I’m not saying that happened,” Earnest continued. “It’s an uncomfortable place to be. But regardless, it’s important that our employees know the can speak freely about this.”

Earnest added that his department would give employees a safe place to speak up and said their union representation was available. The American Federation of State, County and Municipal Employees Council 18, which represents HSD employees, helped the employees to come forward with their allegations in federal court.

Both Sens. Cisco McSorely, D-Albuquerque, and Howie Morales, D-Silver City, criticized a statement released to media by HSD last week that attacked Ortiz y Pino after he called for Earnest’s resignation.

The “acts of passion” comment came in 2013 when Ortiz y Pino called child abuse crimes, “acts of passion, of momentary insanity, of craziness,” in response to a bill seeking increased penalties on child abusers, according to KOAT-TV.

“It just seems that by personalizing things and calling out the chairman when he’s trying to do his duty is not the best policy here,” McSoley told Earnest. “It was people from your own department that were making these allegations. It was not anybody else.”

“You just stated a while ago that any employee shouldn’t feel intimidated by fear,” Morales said. “What kind of assurance and comfort can we give to the employees who want to give that truth out if that’s the kind of tone that’s being sent?”

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New Mexico Governor Michelle Lujan Grisham announced Wednesday a slight easing of COVID-19 restrictions, while also announcing some increased restrictions as of Saturday, May 16.
While Lujan Grisham said the state would start allowing retailers and some other businesses to open to the public with capacity limitations, she also said the new public health emergency order will require everyone in the state to wear a face and nose covering when in public spaces.
She said many businesses, with the exception of entertainment businesses like movie theaters, could open this weekend as long as they keep their capacity at 25 percent of what the fire code allows. She said those businesses must also continue to take certain precautions against spreading COVID-19.
Large retail “box” stores would have their capacity capped at 20 percent.

A grassroots advocacy group launched a billboard campaign Monday to promote keeping abortion safe and legal and to spark conversations about abortion access. The two billboards, from ProgressNow New Mexico*, will be on I-25 near the Budagher Drive exit, between Albuquerque and Santa Fe.

A day after state health officials announced the highest single-day number of COVID-19 cases since the beginning of the pandemic, they announced 129 additional confirmed cases and five additional deaths related to the disease. On Saturday, the state Department of Health announced five additional cases at the Otero County Prison Facility.

Gov. Michelle Lujan Grisham signed a bill into law Friday that protects working mothers and new moms from discrimination in the workplace. HB 25, or the Pregnant Worker Accommodation Bill, amends the state’s Human Rights Act to make pregnancy, childbirth and conditions related to either a protected class from employment discrimination.

Two things about New Mexico’s scandal over the state allegedly falsifying applications for the Supplemental Nutrition Assistance Program stand out to Samuel Chu. The first is documentation of the scandal in federal court, which in May included three top state Human Services Department officials refusing to answer a total of nearly 100 questions from lawyers.

A state official who pleaded her Fifth Amendment rights 39 times in federal court in May is no longer in charge of the Human Services Department’s Income Support Division, which processes federal food aid benefits. HSD Secretary Brent Earnest announced Friday, ahead of a holiday weekend, that Marilyn Martinez will no longer head the department’s Income Support Division.

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A day after state health officials announced the highest single-day number of COVID-19 cases since the beginning of the pandemic, they announced 129 additional confirmed cases and five additional deaths related to the disease.

State Human Services Department Secretary Dr. David Scrase offered some data supporting the use of masks and social distancing to help slow the spread of COVID-19.
The use of face masks in public has become a polarizing topic among some communities as the state has loosened its restrictions on businesses, including closures, over the last week.
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Public health orders restricting some businesses and public gatherings are slowly being lifted, but the New Mexico Supreme Court’s restrictions on eviction proceedings and limitations on civil cases in general are still in place.

Joey Peters has been a journalist for nearly a decade. Most recently, his reporting in New Mexico on closed government policies earned several accolades. Peters has also worked as a reporter in Washington DC and the Twin Cities. Contact him by phone at (505) 226-3197.